The House of Representatives voted to approve Washington, D.C.’s bid to become a state today. The bid, however, is unconstitutional as is the bill that would recognize it as a state.
There are more than a few arguments to demonstrate its unconstitutionality. Some are plainly absurd. Some border on absurdity. Some carry serious weight. I will limit myself to discussing three: the textual argument, the non-formation argument, and the structural argument.
The obvious place to start is with the textual argument. Washington, D.C. exists by virtue of Article I, Section 8, Clause 17 of the United States Constitution, which grants Congress exclusive legislative power over a district, not exceeding ten square miles, that the states donate to become the seat of national government. Washington, D.C. is not a territory. It is a constitutional district formed for the express purpose of providing a dedicated seat for national government.
Compare Art. I., Sec. 8, Cl. 17 with Art. IV, Sec. 3. Art. IV, Sec. 3 carefully delineates that land belonging to the United States is either “Territory” or “Property.” Art. I, Sec. 8, Cl. 17 is far more specific with its classification of the land donated as being a district. Consequently, Congress cannot convert it into a state because it has already declared it the seat of national government, thus rendering it a constitutional district.
The non-formation argument is more nuanced. Article IV, Section 3, Clause 1 was specifically designed to protect each state from the whims of a partisan national government. It prevents Congress from forming new states within a state, by joining two state together, or dividing them up for the creation of new states unless their legislatures consent. To put that in more practical terms, imagine that President Trump does not like the fact that California has so many electoral votes. He and a Republican Congress decide to lop off the southern part of it and create the state of Trump. Article IV, Section 3 prevent him from doing that.
Art. I, Sec. 8, Cl. 17 was specifically mindful of the non-formation considerations of Art. IV, Sec. 3, Cl. 1. Consequently, it required the district that established the national seat of government could only be formed by the cession or donation of land by the states. It also carried a further requirement. Congress had to accept the land.
Virginia and Maryland donated the land that formed the original Washington, D.C., and Congress accepted it via the Residence Act of 1790. The Residence Act of 1790 specifically states that Congress accepted the land to establish the permanent seat of the United States government. In other words, Virginia and Maryland donated the land for the express purpose of creating Washington D.C. They did not, in any form or fashion, consent to another state being formed within their borders. Consequently, creating a state out of Washington, D.C. clearly violates the non-formation clause of Article IV, Section 3, Clause 1.
As a slight detour, Virginia received all of the land that it donated back in 1846 by virtue of Congressional consent. Consequently, only the land donated by Maryland forms Washington, D.C. While some scholars and President Taft believe the retrocession was unconstitutional, it underscores the fact that the land was donated solely for the purpose of forming the national capitol, not creating a new state.
The final argument is more of a practical one than a constitutional one although it has its roots in early American jurisprudence. It is hard for the federal government and state governments to coexist. Their respective powers of sovereignty clash even when they are separated. For a state to exist in a form where almost half of its territory and operations are federal in nature is to create a state with greatly diminished state sovereignty. The well-established rule from the U.S. Supreme Court’s decision in McCulloch v. Maryland is that states may not impede valid constitutional policies and actions by the federal government. It essentially becomes impractical for a state to exist when so much of its territory is occupied by the federal government and its primary business is supporting the federal government and its institutions. It raises significant questions about whether the state of Washington, D.C. could ever truly have state sovereignty with the restraints that McCulloch would impose.
This latest effort to form a new state ignores the constitutional can of worms that it is opening. In my opinion, it is a blatant partisan move of the kind that Article IV specifically guards against. If I was Maryland, I would be throwing a fit right now, and, if the effort succeeds, I am almost tempted to get myself arrested in the state of Washington, D.C. so I can challenge its constitutionality as a legal entity.